PER CURIAM: Charles Butler was indicted for trafficking
in cocaine and unlawful possession of a pistol. A jury convicted him of both
charges and the trial court sentenced him to ten years imprisonment for trafficking
in cocaine and three years imprisonment for unlawful possession of a pistol.
Butler appeals arguing the trial court erred in denying his motion to suppress
the evidence obtained as a result of an unlawful search. We reverse and remand.

FACTUAL/PROCEDURAL BACKGROUND

Officer Todd Cook testified that on the evening
of February 23, 2000, he stopped a van because the vehicle had no taillights.
The driver exited the van and he and Officer Cook walked to the rear of the
vehicle. Cook stated that, as he was writing out a warning ticket to the driver
for defective rear lights, he could smell an odor of alcohol coming from the
driver. He asked the driver whether there was anything inside the van he needed
to know about, such as “illegal contraband” (sic) or any alcohol. Cook stated
that he had a suspicion that there was some alcohol in the van because he could
smell it on the driver and stated, “for my safety and his safety I just wanted
to check, make sure nothing illegal—anything else was going on with the traffic
stop.” Additionally, Officer Cook testified “when he [the driver] was walking
towards me from the van, I smelled alcohol.” He could not tell if the alcohol
was coming from the driver or inside the van, but he suspected there was alcohol
in the van. Cook proceeded to the passenger side of the van to get “the passenger
out.” Butler was the passenger he removed from the van. Officer Cook also
indicated there were additional passengers in the back seat of the van.

Butler objected to admissibility of the evidence Officer Cook obtained
as a result of the stop and subsequent search of Butler. The trial court excused
the jury and conducted an in camera hearing.

During the in camera hearing, Officer Cook testified as follows during
direct examination:

Q: Trooper, why did you get the individuals that were inside
the van out?
A: For my protection and their protection.
Q: What were you going to do when you got them out?
A: Do a routine pat down.
Q: A pat down?
A: Yes.
Q: Terry frisk, okay. Did you check the passenger?
Did you attempt to check the passenger for weapons or a weapon?
A: Yes sir, I did.
Q: What happened after you attempted to check for weapons?
A: The passenger, Mr. Butler fled on foot.
Q: What was the result of your check of him or your pat
down of him?
A: Just his outer clothes.

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Q: What did you do and what did you find? Did you feel
anything?
A: Yes, sir. During my pat down I patted down the pocket
and outside the pocket, and I felt what felt like to be a pistol. And at that
time, he took off running.

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*

Q: [Y]ou got the individuals out for a pat down because
there were other ones there?
A: Yeah.
Q: Okay.
A: I had suspicion that there was alcohol in the van
from the traffic stop.

During cross-examination of Officer Cook, he testified
as follows:

Q: [W]as [Butler] doing anything wrong, that you could
see, in the van . . . when he was sitting there?
A: Well, I was in the process of investigating.
Q: But was he doing anything wrong to cause you to investigate him, sit
down in the front seat?
A: I mean - -
Q: What was he doing but sitting there?
A: Well, you know, I smelled alcohol. I thought it was coming from inside
the van, and that’s what - - if that’s what you’re asking me.
Q: What was this man doing?
A: I was investigating further.

When asked on re-direct why he removed Butler
from the van, Officer Cook indicated that the driver had given him an incorrect
name for the passenger, and that there were “a lot of suspicions going on.”
Officer Cook stated that he could not see what Butler was doing inside the van
and when asked why that was a danger he stated: “Because the driver, when I
asked the driver about the alcohol, if there’s anything in the van, he stated
to me no, there was not, and he gave me the passenger - - or a different name
than what the passenger’s real name was.” He further stated that in order to
ascertain whether anybody in the van had a weapon or was a threat to him he
had to “[g]et each one of them out and talk to them and pat them down.”

Butler argued Officer Cook did not have reasonable
suspicion to conduct a search of Butler, and moved to suppress any evidence
which resulted from the search. The trial court determined that Officer Cook
“was entitled to at least ask the passengers to vacate the van and do a pat
down search before” using his flashlight to look in the van because he had a
“reasonable suspicion of criminal activity, i.e., the smell of alcohol.” The
trial court further stated he didn’t think Officer Cook was afraid of Butler,
but believed Cook conducted the pat down search as part of his continuing investigation
for open containers in the van. The court therefore ruled the officer had a
reasonable suspicion of criminal activity based on the smell of alcohol coming
from the van, and the officer was therefore entitled to conduct a search for
an open container and remove the passengers from the vehicle.

Officer Cook testified in the presence of the
jury, that when he searched Butler and found the gun, Butler ran away into some
woods. Officer Cook shortly thereafter apprehended Butler and seized a large
bag of cocaine and $863.00 from Butler’s pants’ pocket, as well as the pistol
from his jacket pocket.

The jury found Butler guilty of trafficking in
cocaine and unlawful possession of a pistol. Butler appeals.

Butler argues the trial court erred in finding
there was reasonable suspicion to justify a warrantless search under Terry
v. Ohio, [1] and in failing to suppress the evidence obtained
as a result of the search of Butler. We agree.

The Fourth Amendment guarantees “[t]he right of
the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures.” U.S. Const. amend. IV. “The Fourth Amendment
does not proscribe all contact between police and citizens, but is designed
‘to prevent arbitrary and oppressive interference by enforcement officials with
the privacy and personal security of individuals.’” INS v. Delgado,
466 U.S. 210, 215, 104 S.Ct. 1758, 1762 (1984) (quoting United States v.
Martinez-Fuerte, 428 U.S. 543, 554, 96 S.Ct. 3074, 3081, 49 L.Ed.2d 1116
(1976)). The stopping of a vehicle and the detention of its occupants constitutes
a seizure and implicates the Fourth Amendment’s prohibition against unreasonable
searches and seizures. Delaware v. Prouse, 440 U.S. 648, 653-54, 99
S.Ct. 1391, 1396 (1979). “A police officer may stop and briefly detain and
question a person for investigative purposes, without treading upon his Fourth
Amendment rights, when the officer has a reasonable suspicion supported by articulable
facts, short of probable cause for arrest, that the person is involved in criminal
activity.” State v. Woodruff, 344 S.C. 537, 546, 544 S.E.2d 290, 295
(Ct. App. 2001). In determining whether reasonable suspicion exists, the circumstances
must be considered as a whole, and if the officer’s suspicions are confirmed
or further aroused, the stop may be prolonged and the scope enlarged. Id.
The scope and the duration of the seizure must be strictly tied to and justified
by the circumstances which rendered its initiation proper. Sikes v. State,
323 S.C. 28, 30, 448 S.E.2d 560, 562 (1994).

Observing that traffic stops may be dangerous encounters
for police officers, the United States Supreme Court has held that once a motor
vehicle has been lawfully detained for a traffic violation, the police officers
may order the driver and passengers to get out of the vehicle without violating
the Fourth Amendment’s proscription of unreasonable seizures. Maryland v.
Wilson, 519 U.S. 408, 412-15, 117 S.Ct. 882, 885-86 (1997). Under the mandates
of Terry, however, a police officer must have a reasonable suspicion
that an individual is armed and dangerous before conducting a pat down or frisk
of the person. Terry, 392 U.S. at 27, 88 S.Ct. at 1883. The question
is whether “a reasonably prudent man in the circumstances would be warranted
in the belief that his safety or that of others was in danger.” Id.See alsoMinnesota v. Dickerson, 508 U.S. 366, 373, 113 S.Ct.
2130, 2136 (1993) ( when an officer is justified in believing the individual
whose suspicious behavior he is investigating at close range is armed and presently
dangerous to the officer or others, the officer may conduct a pat-down search
to determine whether the person is in fact carrying a weapon; purpose of limited
search is not to discover evidence of crime, but to allow the officer to pursue
his investigation without fear of violence); Maryland v. Buie, 494 U.S.
325, 332, 110 S.Ct. 1093, 1097 (1990) ( limited pat-down for weapons is authorized
where a reasonably prudent officer would be warranted in the belief, based on
specific and articulable facts, and not on a mere inchoate and unparticularized
suspicion or hunch, that he is dealing with an armed and dangerous individual).

It is undisputed Officer Cook had reasonable suspicion
to stop the vehicle in which Butler was a passenger, based on the traffic violation.
Furthermore, Officer Cook was justified in extending the scope and duration
of the traffic stop based on his suspicion that open containers of alcohol may
have been in the van. It is also clear the officer could order the driver and
passengers to get out of the vehicle without violating the Fourth Amendment’s
proscription of unreasonable seizures. The question before us, however, is
whether Officer Cook had reasonable suspicion to conduct a pat-down or frisk
of Butler.

[B]efore the police may frisk a defendant, they must have
a reasonable belief the defendant is armed and dangerous. Ybarra v. Illinois,
444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979). In other words, a reasonable
person in the position of the officer must believe the frisk was necessary to
preserve the officer’s safety. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868,
20 L.Ed.2d 889 (1968). An officer must be able to specify the particular facts
on which he or she based his or her belief the suspect was armed and dangerous.Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968)
(an officer is not entitled to seize and search every person on the street;
mere knowledge of the suspect being a known narcotics dealer who put his or
her hand into a pocket as the police approached does not provide justification);
cf.United States v. Moore, 817 F.2d 1105 (4th Cir. 1987) (justification
found where suspect was observed in the vicinity of a building late at night,
shortly after the alarm sounds, and the street is dark, the officer is alone,
and the suspected crime is burglary), cert. denied, 484 U.S. 965, 108
S.Ct. 456, 98 L.Ed.2d 396 (1987).

State v. Fowler, 322 S.C. 263, 267, 471 S.E.2d
706, 708 (Ct. App. 1996); seealsoState v. Burton 349
S.C. 430, 439, 562 S.E.2d 668, 673 (Ct. App. 2002) (once a basis for a lawful
investigatory stop exists, an officer may protect himself during the stop by
conducting a frisk for weapons if he has reason to believe the suspect is armed
and dangerous; in justifying the intrusion, the officer must be able to point
to specific and articulable facts which, taken together with rational inferences
from those facts, reasonably warrant the intrusion).

Noting that “[t]he indisputable nexus between
drugs and guns presumptively creates a reasonable suspicion of danger” to an
officer, the United States Fourth Circuit Court of Appeals has found that where
an officer has reasonable suspicion that drugs are present in a vehicle lawfully
stopped, there is an appropriate level of suspicion of criminal activity and
apprehension of danger to justify a pat-down or frisk of both the driver and
the passengers. U.S. v. Sakyi, 160 F.3d 164, 169-70 (4th
Cir. 1998). Thus, the court held, “in connection with a lawful traffic stop
of an automobile, when the officer has a reasonable suspicion that illegal drugs
are in the vehicle, the officer may, in the absence of factors allaying his
safety concerns, order the occupants out of the vehicle and pat them down briefly
for weapons to ensure the officer’s safety and the safety of others.” Id.
at 169. Additionally, our court has found reasonable suspicion existed for
an officer to conduct a pat down search of an individual under a variety of
circumstances where the officer articulated sufficient facts to justify the
search. See e.g., State v. Blassingame, 338 S.C. 240, 249, 525
S.E.2d 535, 540 (Ct. App. 1999) (frisk by officer was proper under the circumstances
because a reasonably prudent man, when faced with a man who met the description
of an armed carjacker, kidnapper, and robber who could not satisfactorily explain
why he was in the area, would be warranted in a belief that his safety was in
danger); State v. Smith, 329 S.C. 550, 495 S.E.2d 798 (Ct. App.1998)
(finding reasonable suspicion individual might be armed and dangerous, justifying
a pat down, where officer stated the driver was acting a little bit edgy, fidgeting
and looking around on the inside like he was looking for a weapon, such that
he thought for officer safety he should remove him from the vehicle to keep
him away from any weapons opportunity); State v. Lesley, 326 S.C. 641,
644, 486 S.E.2d 276, 277 (Ct. App. 1997) (finding officer could reasonably have
believed driver of a brown Honda would be armed and dangerous where the officer
“understood the following from the information related to him by the dispatcher
and his own observations: (1) a female complainant had two days earlier reported
a shooting incident to the police; (2) the complainant saw two black males in
two separate cars drive by her home; (3) she described one automobile as a brown-colored
Honda bearing paper tags that advertised Breakaway; (4) the driver in each car
had made a gesture toward her; (5) she felt their actions were connected with
the shooting incident; (6) there could be weapons on the drivers’ persons or
in their cars; and (7) a brown-colored Honda equipped with Breakaway paper tags
and driven by a black male was in the area where the cars were reported as having
been seen.”).

Here, the trial court failed to make any determination that
the officer had the necessary apprehension of danger to justify a pat-down search
of Butler. Indeed, the trial court found the officer had no fear of Butler,
but was merely continuing his investigation of a possible open container violation.
[2] Clearly, the trial court improperly assumed if the officer was entitled
to remove Butler from the vehicle in furtherance of his investigation, he was
automatically entitled to frisk the passenger. The law is settled, though,
that there must be a showing that the officer had a reasonable fear for himself
or for the safety of others to justify the greater intrusion of a pat-down.

The appellate court, however, does not review the trial
court’s determination denovo, but applies a deferential standard
of review, and will reverse only if there is clear error in its ruling. State
v. Khingratsaiphon, 352 S.C. 62, 572 S.E.2d 456 (2002). Thus, this court
will affirm if there is any evidence to support the decision, regardless of
the basis of the trial court’s ruling. Id. In accessing whether a suspect
is armed and dangerous, the officer need not be absolutely certain the individual
is armed; rather the question is whether a reasonably prudent person in those
circumstances would be warranted in the belief that his safety or that of others
is in danger. Id. The officer must be able to point to specific articulable
facts which, taken together with reasonable inferences, reasonably warrant the
intrusion. Id.

Turning to the facts of this case, we find Officer Cook
failed to articulate any facts indicating he believed Butler was armed and dangerous,
or that he feared for his safety or that of others. Officer Cook merely stated
he was suspicious. He did not indicate what his specific suspicions were and,
particularly, did not indicate he was suspicious that Butler was armed or dangerous.
The only basis for any suspicion he had was that he smelled alcohol and the
driver had provided him with an incorrect name for the passenger.
[3] SeeState v. Burton, 349 S.C. at 440, 562 S.E.2d at
673 (where only activity detective pointed to as “suspicious” was individual’s
refusal to answer questions and fact that individual kept his right hand in
his coat pocket, detective failed to articulate valid reasonable suspicion for
stop and search of individual, in spite of detective’s testimony he feared for
safety of those around him). Further, this case does not involve a heightened
apprehension of danger based upon a reasonable suspicion of drug activity, allowing
the conclusion that guns would likely be present. Finally, although Officer
Cook indicated he would have to remove all the passengers from the van and frisk
them in order to ascertain whether anyone in the van had a weapon or was a threat
to him, he failed to specify the particular facts upon which he based any fear
that the passengers were armed and dangerous. SeeU.S. v. Sakyi,
160 F.3d at 168-69 (generalized risk to officer safety is insufficient to justify
a routine pat-down of all passengers as a matter of course). Accordingly, we find that Officer Cook’s
search of Butler was unlawful and that the trial court erred in failing to suppress
the evidence that resulted from the search. SeeState v. Copeland,
321 S.C. 318, 323, 468 S.E.2d 620, 624 (1996) (“The ‘fruit of the poisonous
tree’ doctrine provides that evidence must be excluded if it would not have
come to light but for the illegal actions of the police, and the evidence has
been obtained by the exploitation of that illegality.”).

[2] SeeState v. Woodruff, 344 S.C.
at 553, 544 S.E.2d at 298 (where second search of individual was unrelated
to reasonable apprehension individual was armed with a weapon, such behavior
constituted “the very type of evidentiary search, or ‘fishing expedition,’
Terry expressly refused to authorize and which has been condemned time
and again by the United States Supreme Court, as well as the courts of this
State.”).

[3] It is not clear from the record at what point
the officer actually determined the driver had provided him with an incorrect
name for Butler. Argument of counsel at the trial level suggests the officer
assumed the name was incorrect because Butler failed to respond when the officer
called the name.